20120054 Ver 2_Major Variance_20120417

NCDENR
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Coleen H. Sullins
Beverly Eaves Perdue Director Dee Freeman
Governor Secretary
Variance Request Form
(For Minor and Major Variances)
Protection and Maintenance of Riparian Areas Rules
NOTE. This form may be photocopied for use as an original.
Check the appropriate box below:
_ Major Variance
Minor Variance
Please identify which Riparian Area Protection Rule applies (Note -this must be
one of North Carolina's four buffered river basins. The River Bain map is available at
http://h2o.enr.state.nc.us/admin/mgps/.)
X_ Neuse River Basin: Nutrient Sensitive Waters Management Strategy
Protection and Maintenance of Riparian Areas Rule (15A NCAC 02B.0233)
Note: Applicant is voluntarily submitting this variance request in an effort to
resolve a dispute regarding whether the buffer rule applies.
(See Attached Documents).
_ Tar - Pamlico River Basin: Nutrient Sensitive Waters Management
Strategy Protection and Maintenance of Riparian Areas Rule (15A NCAC
02B.0259)
Part 1: General Information
(Please include attachments if the room provided is insufficient.)
Applicant's name (the corporation, individual, etc. who owns the property):
Flamingo Development, LLC
2. Print owner /Signing official (person legally responsible for the property and its compliance)
Name:
C. K. Gaskins
Title:
_Manager
Street address:
1321 Commerce Drive
City, State, Zip:
New Bern, NC 28562
Telephone:
(_252 _) _633 -5106
Fax:
(252__633 -2836

3. Contact person who can answer questions about the proposed project:
Name: Zachary Taylor
Telephone: `252 _)_633 -5106
Fax: L252 _) _633 -2836
Email: Ztaylor @Suddenlink.net
4. Project name (Subdivision, facility, or establishment name - consistent with project name on plans,
specifications, letters, operation and maintenance agreements, etc.):
1113 Chelsea Road
5. Project location:
Street address:
City, State, Zip:
0
_1113 Chelsea Road
New Bern, NC 28562
County: CRAVEN
Latitude /longitude: 35 -05 -28.13 N x 77 -05 -42.77 W
Date property was purchased: _December 17, 2010
7. Directions to site from nearest major intersection (Attach an 8 1/2 x 11 copy of the USGS topographic
map indicating the location of the site). (See page 2 of attached Exhibit #2a Stream Maps)
From the intersection of Trent Road and Chelsea Road, Go South on Chelsea
Road 500 feet, the site is on the Right (west) side of Chelsea Road.
Stream to be impacted by the proposed activity:
Stream name (for unnamed streams label as "UT" to the nearest named stream):
UT to Wilson Creek
9. Which of the following permits /approvals will be required or have been received already for this
project?
Required: Received: Date received: Permit Type:
CAMA Major
CAMA Minor
X 401 Certification /404 Permit
On -site Wastewater Permit
NPDES Permit (including stormwater)
Non - discharge Permit
Water Supply Watershed Variance
Erosion /Sedimentation Cont
Others (specify)
Part 2: Proposed Activity
(Please include attachments if the room provided is insufficient.)
1. Description of proposed activity [Also, please attach a map of sufficient detail (such as a plat map or
site plan in Adobe (pdf) format) to accurately delineate the boundaries of the land to be utilized in
carrying out the activity, the location and dimension of any disturbance in the riparian buffers
associated with the activity, and the extent of riparian buffers on the land. Include the area of buffer
impact in ft2.:
Variance Request Form, page 2
Version 6 July 2009

_This project is for a Condominium Complex containing approximately Twenty -Two (22) Two
(2) Bedroom units. The current zoning allows up to 33 units to be constructed on the property.
There will be 28 parking spaces located on the first floor of the building with the Second and
Third Floors containing the residential living spaces.
The plan as proposed would impact less than Five (5 %) Percent of Zone 1 and less than
_Thirty (30 %) Percent of Zone 2.
All stormwater from the impervious surfaces will be directed to grassed areas outside
the 50 foot buffer zones.
2. Fill in the table below to identify the square footage of impact to Zones 1 & 2 in the protected
riparian buffers and the required mitigation (Fill in the impacts portion of the table, even if
mitigation is not required):
Zone of
Impact in
Buffer Impact
Purpose for
Multiplier
Required
Impact
Square Feet
Number
the Impact
Mitigation
(Indicate on
Plan Sheet)
Zone 1
694
Building &
3
2,082
Zone 2
2,650
Emergency Exit
1.5
3,975
Total 3,344 6,057
*Zone I extends out 30 feet perpendicular from the most landward limit of the top of bank or the rooted herbaceous
vegetation; Zone 2 extends an additional 20 feet from the edge of Zone 1.
State reasons why this plan for the proposed activity cannot be practically accomplished, reduced or
reconfigured to better minimize or eliminate disturbance to the riparian buffers:
Project has been reduced in size to remove building #3 from the project (see attached
Exhibit #3 Original Site Plan), remainder of Project has been reduced to have a new
impervious area of Less than' /2 acre.
Current design is minimum needed for the buildings and required parking.
4. Description of any best management practices to be used to control impacts associated with the
proposed activity (i.e., control of runoff from impervious surfaces to provide diffuse flow, replanting
vegetation or enhancement of existing vegetation, etc.):
Although no BMP's are required for residential development less than' /2 acre,
All stormwater and gutter downspouts will be directed to grassed areas outside
the buffer area, and parking lot runoff will sheet -flow towards the grassed
road frontage ditch as suggested by DWQ staff. (See attached #9 Revised Site Plan).
5. Please provide an explanation of the following:
(1) The practical difficulties or hardships that would result from the strict application of this Rule.
_If the project could not encroach into the buffers as shown on the attached Revised Site
Plan, the project would be impacted to the degree that the project would not be feasible or
practical.
_Applicant reasonably relied on the most recent version of the NRCS Soil Survey, and USGS
7'/2 Minute map, which indicates no blue -line stream features subject to the buffer rules
within the project footprint.
_[Note: The owner is applying for the variance in a good -faith effort to comply as much as
possible with the buffer rules, but it is our contention that if the rules were "strictly applied" as
stated in Paragraph 3 of 15A NCAC 02B .0233 of the Neuse River rules, the ditch in question
would not fall under the rules and this variance application would be unnecessary.]
Variance Request Form, page 3

Version 6 July 2009
(2) How these difficulties or hardships result from conditions that are unique to the property involved.
The uniqueness of this particular property is that the Buffer Rules should not apply, due to
the fact that the ditch in question is not shown as a "blue- line" stream on the most recent maps
as required under the rules. With this being said, the owner of the property is voluntarily
complying with the Variance process in order to cooperate in good -faith in order to protect the
water quality to the maximum degree possible in order to complete the development of the
property.
(3) If economic hardship is the major consideration, then include a specific explanation of the
economic hardships and the proportion of the hardship to the entire value of the project.
The owner purchased this property after a proper search of the most recent versions of
both the USGS 7'/2 Minute and the Craven County Soil Map as prepared by NRCS, which
confirmed that the drainage feature in question did not appear as a "blue- line" stream.
To deny the owner the full use of his land, based on his reasonable reliance on the most recent
version of these maps would not only be an economic hardship, but would appear to be a violation
of the buffer rules as written.
Based upon his due diligence, the owner paid a price for this property as being fully
developable in accordance with the Original Site Plan.
Part 3: Stormwater
1. Provide a description of all best management practices (BMPs) that will be used to control nutrients
and sedimentation impacts associated with the proposed activity. Please ensure to include all
applicable operation & maintenance agreements and worksheets for the proposed BMPs. Also,
include the BMPs on your plan sheets.
Based on the City of New Bern and Coastal Stormwater Rules, Residential Development
that does not require a Soil and Erosion Control Plan, does not require a Stormwater
permit nor BMP's.
Nevertheless, the project will be designed in order that all building gutter downspouts
and parking areas will sheet -flow towards grassed areas outside the 50 foot buffer zone.
2. Attach a description of how diffuse flow will be maintained through the protected riparian buffers.
Please ensure to include all applicable operation & maintenance agreements and worksheets for the
proposed diffuse flow measure(s). Also, include the diffuse flow measure(s) on your plan sheets.
3. What will be the annual nitrogen load contributed by this site after development in pounds per
acre per year without structural BMPs (stormwater pond, wetland, infiltration basin, etc)? Attach
a detailed plan for all proposed structural stormwater BMPs.
Drainage
Size of
Post - development
BMP nitrogen
Final
Final
basin
drainage
nitrogen 6 loading
removal
nitrogen
nitrogen
basin
rate u*houtBMPs4
ef. ficiencys
loading rate
loading
(ac)
(lbs/ac/yr)
(%)
(lbs/ac/yr)
from
drainage
basin (Ibs)
1
BMP's Offered:
2
...Rain Barrels to catch
First 1" of rainwater
From roof ....
3
...... Directing Balance of
Storm water...........
4
Away From The Buffer
Areas ........and Into
Grassed Swales
5
- Totals
4 Attach calculations and references.

'Attach calculations and references.
61nclude Phosphorus in the Tar - Pamlico Basin
4. Attach all applicable supplement form(s) and Inspection and Maintenance (I &M) Form(s) to this
completed application. The applicable supplemental form(s) and I &M form(s) for the proposed
BMPs noted in your application can be downloaded from the following website:
http://h2o.enr.state.nc.us/suibmp forms.litin
Part 4: Proposed Impacts and Mitigation
Provide a description of how mitigation will be achieved at your site pursuant to 15A NCAC 213.0242 for
the Neuse Basin and 15A NCAC 213.060 for the Tar - Pamlico Basin.
If buffer restoration is the method you are requesting, be sure to include a detailed planting plan to
include plant type, date of plantings, the date of the one -time fertilization in the protected riparian buffers
and a plan sheet showing the proposed location of the plantings. A guide to buffer restoration can be
downloaded at the following website: http:// www. nceep .net/news /reports/buffers.pdf
The disturbed area of Zone 1 will be voluntarily restored with 25 plants as suggested by DWQ.
Plus an additional 19 plants suggested by EMC staff. Total of 44 (see Exhibit #10 Planting Plan)
If payment into a buffer restoration fund is how you plan to achieve your mitigation requirement, then
include an acceptance letter from the mitigation bank you propose to use stating they have the mitigation
credits available for the mitigation requested.
Part 5: Deed Restrictions
By your signature in Part 6 of this application, you certify that all structural stormwater BMPs required by
this variance shall be located in recorded stormwater easements, that the easements will run with the land,
that the easements cannot be changed or deleted without concurrence from the State, and that the
easements will be recorded prior to the sale of any lot.
Part 6: Applicant's Certification
I, C. K. Gaskins _(print or type name of person listed in Part I, Item 2), certify that the
information included on this permit application form is correct, that the project will be constructed in
conformance with the approved plans and that the deed restrictions in accordance with Part 5 of this form
will be recorded with all required permit conditions.
Signature:
Date:
Title:
Manager of Flamingo Development, LLC
Part 7. Plan Sheets
Be sure to include a copy of all of your completed application form, plan sheets and maps in Adobe (pdf)
format on a CD or floppy disk.
See Attached: 1. List of Exhibits 2. Ten (10) Exhibits and 3. Chronology of Events
Variance Request Form, page 5
Version 6 July 200

Part 8: Checklist
A complete application submittal consists of the following components. Incomplete submittals will be
returned to the applicant. The complete variance request submittal must be received 90 days prior to the
EMC meeting at which you wish the request to be heard. Initial below to indicate that the necessary
information has been provided.
Applicant's Item
Initials
• Original and two copies of the Variance Request Form and the attachments
listed below.
• A vicinity map of the project (see Part 1, Item 5)
• Narrative demonstration of the need for a variance (see Part 2)
• A detailed narrative description of stormwater treatment /management (see Part
4)
• Calculations supporting nitrogen (phosphorus in the Tar - Pamlico Basin)
loading estimates (see Part 4)
• Calculations and references supporting nitrogen (phosphorus in the Tar - Pamlico
Basin) removal from proposed BMPs (see Part 4)
• Location and details for all proposed structural stormwater BMPs (see Part 4)
• Three copies of the applicable Supplement Form(s) and I &M Form(s) for each
BMP and /or narrative for each innovative BMP (see Part 4)
• Three copies of plans and specifications, including:
• Development /Project name
• Engineer and firm
• Legend and north arrow
• Scale (1 " =50' is preferred)
• Revision number & date
• Mean high water line (if applicable)
• Dimensioned property /project boundary
• Location map with named streets or NC State Road numbers
• Original contours, proposed contours, spot elevations, finished floor
elevations
• Details of roads, parking, cul -de -sacs, sidewalks, and curb and gutter
• Footprint of any proposed buildings or other structures
• Wetlands delineated, or a note on plans that none exist
• Existing drainage (including off - site), drainage easements, pipe sizes,
runoff calculations
• Drainage basins delineated
• Perennial and intermittent streams, ponds, lakes, rivers and estuaries
• Location of forest vegetation along the streams, ponds, lakes, rivers and
estuaries
Variance Request Form, page 6
Version 6 July 2009

Chronology of Events / 1113 Chelsea Road Property:
Year 2010:
Prior to the purchase of the property located at 1113 Chelsea Road in
December 2010, the owner had the property re -zoned to accommodate
multi - family residential construction and checked for the presence of
any "blue- line" streams on the property. This was done by referring to
the most recent versions of both the USGS 7 �/z Minute Map and the
Craven County Soil Map as prepared by NRCS. (See attached Exhibits
#2a, 2b, & 2c.)
According to both of these maps, there was only one such "blue- line"
stream located on the far western boundary of the property that was
located over 75 feet from the proposed development and the
development activities will not encroach on either Zone 1 or 2 of that
particular stream.
(Note: The ditch that runs along the northernmost boundary of the
property (being the ditch that the below mentioned June 14th Notice of
Violation refers to) does not appear as a "blue- line" stream on either of
the most recent maps as required by the Neuse River Buffer Rules.)
June 2011:
In June of 2011, the owner had the area along the northern boundary
ditch mowed to aid in surveying and preparing the site for development.
On June 14, 2011 the owner received a Notice of Violation / NOV -2011-
WQ- 0023 from the NC Division of Water Quality in Washington, NC.
(See the attached Exhibit # 1)
July 2011:
On July 11, 2011 we responded with a letter to Al Hodge at the
Washington NC office of the NC Division of Water Quality, giving a
1

review of the investigation efforts that were taken by the owner prior to
work being done near the north boundary ditch, including copies of the
maps that clearly indicated that the ditch was not shown as a "blue- line"
stream as required by the Neuse Buffer Rules. (See attached Letter
Exhibit #2)
August 2011:
On August 1, 2011 Zachary Taylor (agent for the owner) met with Al
Hodge and Amy Adams at their office in Washington NC to review the
issues raised by their Notice of Violation. At this meeting it was agreed
that the disturbed area of Zone 1 would be left alone until October 2011
to see if woody plants would regenerate without planting.
December 2011:
On December 20, 2011 a meeting was held with representatives of the
NRCS in the Craven County office. At this meeting it was verified by
the agency representatives that the On -Line version of the Craven
County Soil Map is in -fact the "most recent version" of such map.
(See attached letter Exhibit #5 and Soil Map Exhibit #5a)
January 2012:
On January 18, 2012 Clark Wright (attorney) on behalf of the owner
sent a letter to Al Hodge of the Washington office of DWQ concerning
an extension of time to respond to the issues involved. (See attached
Exhibit #6)
February 2012:
On February 22, 2012 Clark Wright (attorney) on behalf of the owner,
and Zachary Taylor (agent for the owner) met with Al Hodge, Amy
Adams, and Scott Vinson at the DWQ office in Washington NC to
review the issues. At this meeting it was agreed that even though the
owner still contends that there are no legal buffers involved in the
proposed development of this site, that the owner will nevertheless agree
in good -faith to: (i). replace the necessary woody plants along a 120 foot
2

section of Zone 1, (ii). apply for a major variance to the buffer rules in
an attempt to resolve the buffer issue, (iii). Redesign the project to
eliminate the third building in the project and keep the new impervious
area to less than �/z acre, and (iv). Divert building gutter downspouts and
parking areas to grassed areas outside of what would be the 50 foot
buffer area in order to protect the water quality in the northern boundary
ditch, and to resolve the buffer issue.
At this meeting it was also agreed that the owner would appeal the most
recent inspection to allow time for the major variance application to be
heard by EMC.
March 2012:
On March 16, 2012 attorney Clark Wright sent a letter of appeal to
DWQ in Washington & in Raleigh, to preserve the owner's right to
appeal the buffer designation as if no variance application were applied
for. (See attached letter Exhibit #8)
End
3

List Of Exhibits to Variance Request Application
Chelsea Road / New Bern, NC
1. Violation Notice Flamingo 6 -14 -11
2. Letter to Al Hodge 7 -11 -11
2a. CR -85 Stream Maps ztpc (shows both USGS & County)
2b. Craven County Soil Map
2c. USGS 7.5 Minute
3. Original Site Plan CR -85
4. DENR Follow -up Letter 11 -30 -11
5. NRCS Letter on Craven Soil Survey 12 -20 -2011
5a. Chelsea Road on NRCS Soil Survey
6. 1 -18 -12 Clark letter to DWQ
7. Chelsea DWQ Letter 1 -20 -12
8. 03 -14 -12 - DWQ Stream Det Appeal Lettter
9. Revised Site Plan
10. Planting Plan - Chelsea

Beverly Eaves Perdue, Governor
F WATT
'Q Dee Freeman, Secretary
`0� QG North Carolina Department of Environment and Natural Resources
0) t7 Coleen H. Sullins, Director
D C Chuck Wakild, P.E., Deputy Director
June 14, 2011
CERTIFIED MAIL #7011 0110 0000 9947 6855
RETURN RECEIPT REQUESTED
John Spain
Flamingo Development LLC
1321 Commerce Drive
New Bern NC 28560
Subject: NOTICE OF VIOLATION
NOV -201 1 -WQ -0023
Flamingo Development LLC
Neuse River Riparian Buffer Violation
Wetland Violation
Craven County
Dear Mr. Spain:
On June 7, 2011 Amy Adams of the Washington Regional Office Division of Water
Quality conducted a site inspection of 1113 Chelsea Road in New Bern, NC. The site is
located in Craven County and is bordered by an unnamed tributary to Wilson Creek,
which is in the Neuse Basin and therefore subject to the Neuse River Riparian Buffer
Rules.
During the site inspection Ms. Adams observed unauthorized impacts within the Riparian
Buffer located on site. In addition, she observed grading, grubbing, and placement of
fill within wetlands located on site. These activities constitute a violation with the
Division of Water Quality.
As a result of the site inspection and file review, the following violations, detailed below,
are noted:
(1) Neuse River Riparian Buffer Violation
(2) Wetland Standards Violation
Item I. Unauthorized Impacts to Protected Neuse River Riparian Buffer
The removal of riparian buffer vegetation along approximately 300 linear feet of stream
represents violations of (Title 15A North Carolina Administrative Code 2B .0233 (4) of the
Neuse River Riparian Buffer Rules which requires that Zones 1 and 2 of the riparian buffer
North Carolina Division of Water Quality Internet: www.ncwaterquality.org
943 Washington Square Mall Phone: [phone] �TOne
Washington, NC 27889 FAX [phone] lr o hCarolina
An Equal Opportunity /Affirmative Action Employer— 50% Recycled /10% Post Consumer Paper Aawally

Page 2 of 3
Flamingo Development LLC
Craven County
remain in vegetation that is undisturbed except for those uses provided for in Item (6) of
this Rule.
Item II. Unauthorized Impacts to Wetlands
The grading, grubbing, and placement of fill material in an area of wetlands represents
violations of (Title 15A North Carolina Administrative Code 02B .0231 (b) requires:
(1) Liquids, fill or other solids or dissolved gases may not be present in amounts which
may cause adverse impacts on existing wetland uses; (5) Hydrological conditions
necessary to support the biological and physical characteristics naturally present in
wetlands shall be protected to prevent adverse impacts on:
(C) The chemical, nutrient and dissolved oxygen regime of the wetland;
(D) The movement of aquatic fauna;
(F) Water levels or elevations.
Requested Response
This Office requests that you respond to this letter in writing within 30 calendar days of
receipt of this Notice and should address the following items:
1. Please explain when construction (excavation, grubbing, and clearing) began at
the site.
2. Please clearly explain why appropriate 401 Water Quality Certification and a 404
Permit were not secured.
3. Please provide documentation (including a detailed site map /survey) depicting all
jurisdictional water features (e.g. streams, wetlands, buffers) on the site. This
documentation should describe and quantify the impacts to those jurisdictional
features, and should include plans to avoid further stream and wetland impacts on
the site.
4. Please submit a Restoration Plan to this office for review and approval. You are
encouraged to secure a consultant to assist you with your plan development,
permit, certification and authorization necessary to achieve compliance. This plan
should include the following:
a.) The restoration plan must detail how the earthen fill material placed in
wetlands (including all side casting) will be removed and how excavated
wetlands will be restored. This information must be clearly depicted on a
map that you provide as a part of this response. This map should also
indicate all of the wetlands locations on the tract as well as the wetland
areas that have been impacted;
b.) Satisfactory wetland restoration requires the replanting of at least 2 native
hardwood wetland species and the maintenance of a stem
density /survivorship of at least 320 trees per acre at the end of 3 years. Also,

Page 3 of 3
Flamingo Development LLC
Craven County
this plan will require an herbaceous wetland seed mix for all wetlands that are
disturbed;
c.) Riparian zone planting: A planting plan must be developed and
implemented in order to ensure that at least two native tree species be
planted at a density sufficient to provide 320 trees per acre at maturity. This
density is usually achieved by planting approximately 436 trees /acre on a 10
x 10 ft. grid or 681 trees /acre on an 8 x 8 ft. grid. Please see the attached
Guidelines for Riparian Buffer Restoration (January 2001) for assistance in
developing your plan. This plan must include the types of native woody
vegetation selected, methodology of planting, and site map indicating the
location of the replanting efforts. (Note: Zone 1 of the riparian buffer will be
required to be restored).
d.) It is required that you contact the United States Army Corps of Engineers to
determine if a 404 Permit is necessary for these restoration activities;
e.) Please indicate in your response a schedule with dates detailing when the
restoration will be accomplished. This schedule should include a three -year
monitoring plan to ensure that the wetlands are restored.
5. Finally, please explain how you propose to prevent these problems from reoccurring
on future projects.
Thank you for your attention to this matter. This office requires that the violations, as
detailed above, be abated immediately. Please be advised, these violations and any
future violations are subject to a civil penalty assessment of up to $25,000.00 per day for
each violation. Should you have any questions regarding these matters, please
contact either Amy Adams or myself at (252) 946 -6481.
Sincerely,
041U�
10"-AI Hodge, Regional Supervisor
Surface Water Protection Section
Washington Regional Office
cc: WaRO Files
DWQ Central Files
Amy Chapman- Riparian Buffer Program Central Office
William Wescott, U.S. Army Corps of Engineers, Washington Field Office
Craven County Building Inspector

c'V
t
Zachary Taylor
for
P.O. Box 12006 New Bern, North Carolina 28561
Office. 252 - 633 -5106 Fax: [phone]
ZTa for @Suddenlin.k.Net
July 11, 2011
At Hodge
NC Division of Water Quality
943 Washington Square Mall
Washington, NC 27889
Subject: Notice of Violation / NOV- 2011 -WQ -0023 / Dated: Tune 14, 2011
Dear Al:
We have been doing work for the owner of the single family residence at 1113 Chelsea Road in
New Bern, and the owner received a Notice Of Violation dated Tune 14, 2011 (see copy
enclosed) and 1 am responding to you on behalf of the owner concerning this Notice.
We started work on this site about seven (7) weeks ago, and before starting had checked the
USGS 7.5 minute Quad maps to be sure the ditch along the north side of the property was not
shown as a Blueline Stream (See attached copy of the USGS Quad map). We also checked the
most recent Craven County Soil Survey map on the County Website and again the ditch was not
shown as a Blueline Stream (See attached copy of the map from the County Website).
Before we started, the area along and 30 feet from the northern boundary ditch contained some
scattered small trees (approximately 1 to 2 inches in diameter), and bushes along with an
abundance of grass along the edge of the ditch that had grown to a height of about 8 inches.
Also adjoining the boundary ditch was a recently occupied campsite with tents that had been
used during the last several years prior to our bush - hogging.
There is an old berm. approximately 10 feet wide along the entire length of the ditch and directly
adjacent to the ditch (likely placed there when the ditch was last cleaned out). This berm is
approximately one (I') foot higher in elevation than the wetland area that runs along the south
side of the berm and ditch, and this berm acts as a dam with the wetlands acting as a retention
pond that prevents any normal surface water from flowing directly into the ditch.
It is the current owner's intention to continue to use this 1.6 acre lot for residential use, and
simply wanted to clean up the overgrown areas that are near the existing residence that was built
around the year 1947.

The owner does not wish to do anything that would degrade the water quality leaving his
property, but feels that the existing 10 foot wide berm along the south side of the boundary ditch
should be sufficient to prevent any degradation of the water quality of the ditch, and thereby
should eliminate the necessity of having a 50 foot vegetated buffer in this particular case.
As to the 404 Wetlands on the site, we are currently working with William Wescott and Tracy
Wheeler of the COE to resolve any issues relating to any violation of these regulations.
The engineering staff of the City of New Bern has looked at the boundary ditch and may be
interested in cleaning this ditch out to improve the flow during future heavy rainfall events, and
the spoil from this future cleanout could be added. to the top of the existing 10 foot berm to
further prevent any surface water from flowing into the ditch. This would likely require a permit
from the Corps of Engineers, and we will discuss this permit with them if the City is allowed to
clean the ditch.
This letter gives you as much information as I have at this time, and I look forward to working
with you and your staff to insure that the waters in the boundary ditch are not impaired from any
activity that takes place on the property.
I can be reached most easily by cell phone which is 252 -670 -8290, and would be happy to sheet
with you or your staff at any time.
Sincerely,
Zac Taylor
Copy of Notice of Violation NOV- 2011. -WQ -0023
Copy of USGS 7.5 Minute Quad Map
Copy of most recent Soil Survey from Craven County website
Copy of Draft of 404 Wetland Survey Map
2

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Beverly Eaves Perdue
Governor
A*A
NCDENR
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Director
Coleen H. Sullins
November 30, 2011
CERTIFIED MAIL #7011 0110 0000 9947 6985
RETURN RECEIPT REQUESTED
John Spain
Flamingo Development LLC
1321 Commerce Drive
New Bern NC 28560
Dear Mr. Spain:
Dee Freeman
Secretary
Subject: Follow -up Inspection of Violation Conditions
NOV -201 1 -WQ -0023
Flamingo Development LLC
Neuse River Riparian Buffer Violation
Wetland Violation
Craven County
On June 14, 2011 Amy Adams of the Washington Regional Office Division of Water Quality
conducted a site inspection of 1113 Chelsea Road in New Bern, NC and issued a Notice of Violation
to you for the following violations.
(1) Neuse River Riparian Buffer Violation
(2) Wetland Standards Violation
After a meeting with Mr. Taylor in August of this year, it was agreed that the site would be allowed to
naturally regenerate for 3 months to ascertain whether a formalized replanting plan would be
needed or whether the site would be able to regenerate itself. On November 2, 2011 Amy Adams
and Anthony Scarbraugh of the Division re- inspected the site. It was observed that the wetland fill
had been removed and is considered resolved. The 50 -ft buffer was also inspected. It was observed
that while the herbaceous layer is regenerating well, there was no evidence of woody stemmed
vegetation recruitment to the site. Therefore, a replanting plan will be needed to resolve the
remaining buffer violation.
Requested Response
This Office requests that you respond to this letter in writing within 30 calendar days of receipt of this
Notice and should address the following items:
North Carolina Division of Water Quality Internet: www.ncwaterauality.org
943 Washington Square Mall Phone: 252 - 946 -6481
Washington, NC 27889 FAX 252 - 946 -9215
An Equal Opportunity /Affirmative Action Employer— 50% Recycled /10% Post Consumer Paper
NorthCarolina
JVatura!!ff

Page 2 of 2
1. Please submit a Restoration Plan to this office for review and approval. This plan should include
the following:
a.) Riparian zone planting: A planting plan must be developed and implemented in order to
ensure that at least two native tree species be planted at a density sufficient to provide
320 trees per acre at maturity. This density is usually achieved by planting approximately
436 trees /acre on a 10 x 10 ft. grid or 681 trees /acre on an 8 x 8 ft. grid. Please see the
attached Guidelines for Riparian Buffer Restoration (January 2001) for assistance in
developing your plan. This plan must include the types of native woody vegetation
selected, methodology of planting, and site map indicating the location of the replanting
efforts. (Note: Zone 1 of the riparian buffer will be required to be restored).
For your site violation, the approximate linear footage was 300 linear feet of impacted
buffer. This should equate to approximately 100 trees and /or shrubs that require planting in
the 50 foot riparian zone.
b.) Please indicate in your response a schedule with dates detailing when the restoration will
be accomplished. This schedule should include a three -year monitoring plan to ensure
that the wetlands are restored.
Thank you for your attention to this matter. This office requires that the violations, as detailed above,
be abated immediately. Please be advised, these violations and any future violations are subject to
a civil penalty assessment of up to $25,000.00 per day for each violation. Should you have any
questions regarding these matters, please contact either Amy Adams or myself at (252) 946 -6481.
Sin erel ,
AI Hodge, egiona Supervisor
Surface Water Protection Section
Washington Regional Office
Enclosures: Buffer Restoration Guidelines
cc: WaRO Files
DWQ Central Files
Amy Chapman- Riparian Buffer Program Central Office
Craven County Building Inspector
Zachary Taylor, PO Box 12006 New Bern NC 28561

Zachary Taylor
P.O. Box 12006 New Bern, North Carolina 28561
Office: 252- 633 -5106 Fax: [phone]
ZTaylorgSuddenlir&Net
December 20, 2011
Andy Metts & Patrick Baker
c/o NRCS
302 Industrial Drive
New Bern, NC 28562
Subject: Most Recent Soil Survey for Craven County
Dear Andy and Patrick:
In reference to my phone conversation with Patrick last Friday, I understand that
the Most Recent Version of the Soil Survey Mar) for Craven County, NC that is
prepared by the Natural Resources Conservation. Service (NRCS) is shown on the
web, and can be accessed by going to the web page shown below, and entering the
State and County in the pull -down menus shown on the left side of the page.
http: / /websoilsurvey.nres.usda. y,ov/gpp /WebSoilSurvey. aspx
Please let me know if my understanding above is correct.
Reply from NRCS
Your understanding above P/ Is Is Not
Correct.
Date: December J. D , 2011

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DAVIS HARTMAN WRIGHT PL LC
r
ATTORNEYS AT LAW
CHARLOTTE NhW BERN WIIIIINGI'ON
MICHAEL SCOTT DAVIS
MARE SPENCE HARTMAN
SHANNON (- MISST -) S. SPAINHOUR
1. CLARK WRIGHT, )R.
January 18, 2012
VIA ELECTRONIC AND U.S. MAIL
Mr. Al Hodge, Regional Supervisor
Surface Water Protection Section
Division of Water Quality
Washington Regional Office
943 Washington Square Mall
Washington, NC 27889
RE: Flamingo Development, LLC
DWQ File No. NOV- 2011- WQ-0023
)1i�1 .
Thank you for allowing additional time for responding to DWQ's T
requesting restoration work at the property located at 1113 Chelsea
Carolina, which I understand is the subject of the above - referenced
mentioned to you and Amy on the telephone, I am representing the
matter.
209 POLLOCK STREET
NNW BEEN, NC 20360
PHONH 232 -314 -2020
PAZ 252- 314 -9070
SENDER'S R-MAHr
ber 30, 2011 letter
in New Bern, North
Enforcement file. As I
caner for purpose of this
After significant investigation of the facts, and rcview of the applicai le Neuse Buffer Rules, it is my
conclusion that the relevant provisions of 15A NCAC 02B.0233 confirm that there is no buffer
requirement applicable to this property. This conclusion is based on ithe fact that the relevant drainage
feature located on the property does not appear on the most recent version of either the soil survey
map prepared by the USDA NRCS, or the 1:24,000 scale (7.5 minute) USGS topographic quadrangle
map for that property area. The relevant language in the above -cited rule concludes with the
categorical statement "Riparian buffers adjacent to surface waters that do not appear on either of the
maps SHALL NOT BE SUBJECT TO THIS RULE." [Emphasis added.]
In regard to the issue of what is the most recent version of the relevant USDA NRCS soil survey map,
I and my client independently have confirnied directly with NRCS officials that the online maps are,
in fact, the most recent version of this map as referenced in the applicable Neuse Buffer Rules. In this
regard, it is noteworthy that the rule does not state that the most recent version must be a printed or
bound paper volume. In fact, distinctions regarding the term "printed" are meaningless in today's
world, for one can print anything one finds online, and any book printed is also stored in digital form.
It also is noteworthy that, as someone who was involved in the original rule making for the Neuse
Buffer Rules, the issue of the appropriateness of using these referenced maps as a basis for buffer rule

Mr. Al Hodge, Regional Supervisor
January 18, 2012
Page Two
jurisdiction was raised by a number of stakeholders, who quite correctlypointed out that neither the
soils survey maps nor the USGS topo maps were (are) created or intended to serve as an accurate
basis for stream identification or water quality protection purposes. DWQ's consistent response at the
time, and for many years thereafter, was that the agency recognized these limitations fully, but wanted
to create a rule that was simple to apply, and easy for landowners to find out whether their land was,
or was not covered In fact, the sole original purpose of the on site stream identification process was
to E3FMPT stream features that DID appear on one or both referenced maps from buffer rule
regulation. (See. Mgd&A ly 15A NCAC 02B.0233(3)(a).]
Because the feature does not appeal on the most recent version of either map, and thus the buffer
requirements do not apply, this letter does not address the possible application of any of the other
exemptions set forth in 02B.0233(3)(a) or (b). On behalf of my client, I reserve the right to make a
formal request for any such exemptions, should the issue of application of the buffer rule to this
feature be resolved contrary to my conclusion as set forth above.
Having set forth our position formally and for the record, I recognize that DWQ disagrees, asserting
(as best I understand) that since the disputed feature appears on the older NRCS soil survey map book
for Craven County, that is the map DWQ relies onto assert jurisdiction over this feature_ The normal
way this kind of a dispute would be resolved would be through the administrative appeals process,
followed by further review in the courts. Needless to say,, such a process is both time consuming and
expensive.
In recognition of those facts, and because our client very much would like to find a win -win solution
to this problem, I would like to close by proposing that we schedule a meeting at your offices where
my client will present an updated site plan that includes proposed stormwater controls m an effort to
see if those plans can be found, to comply with the buffer rule, assuming (for settlement purposes
only) that such does apply to the disputed feature. Settlement by means of a possible minor variance
request, which could be handled at the staff level comes to mind.
In this regard, my client is in the process of obtaining an updated site plan. We anticipate having this
in hand on or before February e. We would like to suggest that a meeting then be scheduled as soon
as possible to review that plan. If you can consult with your staff and provide us with several dates
that work for DWQ, we will do our best to make one of them work.
In closing, I look forward to working with DWQ to explore all options for a satisfactory, voluntary
settlement of our differences. In that regard, I remain
Yours
. Clark Wright, Jr.
ICW:icw
cc: Client (via email)

4
NCDENR
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue Charles Wakild, P.E. Dee Freeman
Governor Director Secretary
January 20, 2011
John Spain
Flamingo Development LLC
1321 Commerce Drive
New Bern NC 28560
DWQ Project # 12 -0054
Craven County
Subject Property: 1113 Chelsea Road, New Bern NC
UT to Wilson Creek [NEU10, 27- 101 -37; C, Sw, NSW]
On -Site Determination for Applicability to the Neuse River Riparian Area
Protection Rules (15A NCAC 2B .0233)
Dear Mr. Spain:
On January 12, 2012, I conducted an on -site determination to review the blue line feature
that is a UT to Wilson Creek located on the subject property for applicability to the Neuse
River Buffer Rules (15A NCAC 2B .0233). The stream is labeled as "12- 0054A ", "12-
0054B", and "12- 0054C" on the attached map initialed by me on January 20, 2012. The
project is located at 1113 Chelsea Road in New Bern, NC
During my review I evaluated the stream using the DWQ Stream Classification Form. I
evaluated the stream reach "A" and calculated the score to be 39 points, stream reach "B"
and calculated the score to be 37.5 points, and stream reach "C" and calculated the score
to be 38.5 points. The form states that if the score is "greater than or equal to 19 points
the stream is at least intermittent ".
The Division of Water Quality (DWQ) has determined that the surface water
labeled as 1112- 0054a, 12- 0054b, and 12- 0054c" on the attached map is perennial and
is SUBJECT to the Neuse River Buffer Rule. This perennial stream and its associated
buffers should be identified on any future plans for this property. The owner (or future
owners) should notify the DWQ (and other relevant agencies) of this decision in any
future correspondences concerning this property. This on -site determination shall expire
five (5) years from the date of this letter.
North Carolina Division of Water Quality Internet: www.ncwaterquality.org
943 Washington Square Mall Phone: [phone] One
Washington, NC 27889 FAX [phone] NorthCarolina
An Equal Opportunity /Affirmative Action Employer— 50% Recycled /10% Post Consumer Paper lVatmrally

Page 2 of 2
Landowners or affected parties that dispute a determination made by the DWQ or
Delegated Local Authority that a surface water exists and that it is subject to the buffer
rule may request a determination by the Director. A request for a determination by the
Director shall be referred to the Director in writing c/o Karen Higgins, DWQ, Wetlands,
Buffers, Stormwater, Compliance and Permitting Unit (WBSCP) Mail Service Center,
Raleigh, NC 27699 -1650. Individuals that dispute a determination by the DWQ or
Delegated Local Authority that "exempts" a surface water from the buffer rule may ask
for an adjudicatory hearing. You must act within 60 days of the date that you receive this
letter. Applicants are hereby notified that the 60 -day statutory appeal time does not start
until the affected party (including downstream and adjacent landowners) is notified of
this decision. DWQ recommends that the applicant conduct this notification in order to
be certain that third party appeals are made in a timely manner. To ask for a hearing,
send a written petition, which conforms to Chapter 150B of the North Carolina General
Statutes to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh,
N.C. 27699 -6714. This determination is final and binding unless you ask for a hearing
within 60 days.
This letter only addresses the applicability to the buffer rules and does not approve any
activity within the buffers. Nor does this letter approve any activity within Waters of the
United States or Waters of the State. If you have any additional questions or require
additional information please call Amy Adams at (252) 948 -3917 or Amy Chapman in
our Central Office at (919) 807 -6400.
Enclosure: Buffer Applicability Map
cc: Beverly Strickland, Webscape Unit
WaRO File Copy
Amy Chapman, Webscape Unit
Clark Wright, 209 Pollock Street New Bern NC
'
S t cere y,
Al Hodge/SuupervA
Division of Water Quality
Surface Water Protection
Washington Regional Office
Filename: 12 -0054 1113Chelsea StreamDet /aa

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DAMS HARTMAN WRIGHT PLW
ATTORNEYS AT LAW
CHARLOTTE NEW BERN W 1- AUNGTON
MICHAEL SCOTT DAVIS
MARE SPENCE HARTMAN
SHANNON (- MISSY -) S. SPAINHOUR
I. CLARK WRIGHT, JR.
March 14, 2012
VIA ELECTRONIC MAIL
VIA U.S. MAIL
Mr. Al Hodge, Regional Supervisor
Surface Water Protection Section
Division of Water Quality
Washington Regional Office
943 Washington Square Mall
Washington, NC 27889
Ms. Karen Higgins
DWQ WBSCP Unit
1650 Mail Service Center
Raleigh, NC 27699 -1650
RE: Flamingo Development, LLC
1113 Chelsea Road in New Bern, North Carolina
DWQ File No. NOV- 2011 -WQ -0023
Dear Ms. Higgins and Mr. Hodge (Al):
209 POLLOCK STREET
NEW BERN, NC 28560
PHONE [phone]
FAX [phone]
SENDEWS E4AAU: ICW@DHWLEGALCOM
The purpose of this letter is to make a protective referral (appeal) request to the Director of the
Division of Water Quality (DWQ) pursuant to the relevant provisions of the Neuse Buffer Rules [15A
NCAC 02B.0233(3)(a)). It is our position that the provisions of the Neuse Buffer Rule do not apply
to our client's above- described property. When our client purchased this property for development, it
performed proper due diligence by researching the most recent versions of both the NRCS Craven
County soils map and the USGS 7.5 Minute Topographic map. The drainage feature of concern to
DWO does not appear on either of these maps.
Despite this undisputed fact, DWQ has taken the position that because the feature appears on a prior
version of the NRCS Craven County soils map, and because DWQ likes the fact that this older map
shows more stream features, DWQ unilaterally can ignore the meaning of the words "most recent
version" as plainly stated in the Neuse Buffer Rule and impose the Neuse Buffer Rule requirements
(including enforcement action) on a completely innocent landowner. Attached for the record in this
regard please fine a copy of a recent letter, signed by the relevant NRCS official, confirming that the

Ms. Karen Higgins
Mr. Al Hodge
March 14, 2012
Page 2
most recent version of the NRCS soils map is the one our client consulted — namely the online digital
version.
Because the drainage feature in contention does not appear on the most recent version of the relevant
maps, DWQ has no buffer rule authority over either our client or this property. Likewise, DWQ had
no authority to unilaterally perform an on -site stream determination [see 15A NCAC 02B.0233(3)(a),
which only authorizes the landowner to make such a request where a stream feature is, in fact, present
on the most recent version of one or more of the relevant maps]. Our client did not request any such
determination because its due diligence confirmed that the relevant drainage feature does not aooear
on the most recent versions of either of the relevant maps. Thus DWQ's recently performed stream
determination represents unauthorized agency action that cannot serve as the basis of a valid stream
determination for purposes of the Neuse Buffer Rule.
Because DWQ has nonetheless attempted to take enforcement action against our client, and recently
notified our client of a purported stream determination, this letter now serves as our client's protective
referral request to the DWQ Director. The stream determination notice letter to our client is dated
January 20, 2011 (sic); 1 it was received by our client on or about January 21, 2012. As stated above,
and in my prior letter responding to DWQ's enforcement notice to our client (copy enclosed), it is our
client's position (and a fact) that the Neuse Buffer Rules cannot be applied to the above - referenced
property due to the undisputable fact that the relevant drainage feature simply does not appear on the
most recent version of either the soil survey map prepared by the USDA NRCS, or the 1:24,000 scale
(7.5 minute) USGS topographic quadrangle map for this area. Under the straightforward language of
the rule: "Riparian buffers adjacent to surface waters that do not appear on either of the maps SHALL
NOT BE SUBJECT TO THIS RULE." (Emphasis added.]
Because the feature does not appear on the most recent version of either map (and thus by definition
the buffer requirements cannot apply to this property), this referral request to the DWQ Director is to
confirm the absence of buffer jurisdiction. Therefore, this referral request does not address the
possible application of any of the exemptions set forth in 15A NCAC 02B.0233(3)(a) or (b). Should
it become necessary in the future to address the issue of such exemptions, our client reserves the right
to make a formal request for any such exemptions, should the issue of application of the buffer rule to
this feature be resolved contrary to our position.
Voluntary Efforts to Settle
Having set forth our position to protect our clients' legal rights, let me now take this opportunity to
thank Al Hodge and his staff for the constructive meeting we attended at DWQ's Washington
Regional Office on February 22, 2012. As a result of that meeting (and notwithstanding our strongly
held position that this property is not subject to the buffer rules), our client has decided to make a
good faith effort to explore the major variance request process with the Environmental Management
Commission (EMC), with the goal of obtaining DWQ Washington Regional Office support, and with
' DWQ's letter incorrectly states that it was sent on January 20, 2011; the letter then correctly notes that the stream
determination site visit occurred on January 12, 2012, thus confirming that the correct letter date is January 20, 2012.

lbs. Karen Higgins
Mr. Al Hodge
Narch 14, 2012
Page 3
our best efforts to submit a final variance request package in time for consideration at the EMC's May
2012 meeting. We currently are working with our client and DWQ regional office staff to prepare the
necessary variance request materials — first for informal review by the DWQ Washington Regional
Office, then for input from Amy Chapman in Raleigh, and then subsequent formal submittal to the
EMC. As a further show of good faith, and again notwithstanding our strongly held position that
there is no buffer jurisdiction on this property, our client has agreed to voluntarily plant vegetation in
the areas that DWQ asserts are part of the buffer zone. We believe this action very much indicates
our client's good faith to resolve this matter without having to resort to a formal court ruling that
enforces the plain terms of the buffer rules (and NRCS's letter) regarding the most recent version of
the NRCS soils map.
We look forward to continuing that process; since the buffer rules do not expressly define a time
period within which the DWQ Director must processes this referral request, we suggest that the
Director may wish to consider holding this matter open pending resolution of our client's May 2012
variance request to the EMC.
We look forward to continuing to explore with DWQ the potential for a satisfactory, voluntary
settlement of our differences, while still fully preserving our client's legal rights. In that regard, I
remain
Very truly yours,
I. Clark Wri ght, Jr.
ICW:icw
Enclosures
cc: Client (via e-mail)
Ms. Amy Chapman, DWQ (via e-mail)

Zachary Taylor
P.O. Box 12006 New Bern, North Carolina 28561
Office: 252 -633 -5106 Fax: [phone]
UaylorQa ,Suddenlink.Net
December 20, 2011
Andy Metts & Patrick Baker
c/o NRCS
302 Industrial Drive
New Bern, NC 28562
Subject: Most Recent Soil Survey for Craven County
Dear Andy and Patrick:
In reference to my phone conversation with Patrick last Friday, I understand that
the Most Recent Version of the Soil Survey Map for Craven County, NC that is
prepared by the Natural Resources Conservation Service (NRCS) is shown on the
web, and can be accessed by going to the web page shown below, and entering the
State and County in the pull -down menus shown on the left side of the page.
http: / /websoilsurvev.nres.usda. og_vlgVR/WebSoilSurvey.aspx
Please let me know if my understanding above is correct.
Reply from MRCS
Your understanding above ✓ Is Is Not
Correct.
Date: DecemberJ.13 , 2011

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